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Wakenna Dowell v. Hossein Ameri

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 26, 2012

WAKENNA DOWELL, PLAINTIFF-RESPONDENT,
v.
HOSSEIN AMERI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-14560-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 21, 2011

Before Judges Sapp-Peterson and Ostrer.

Defendant Hossein Ameri appeals from the order of the Law Division, Special Civil Part, awarding judgment of $1550.34 to plaintiff, Wakenna Dowell, after a bench trial. We affirm.

I.

Dowell and Ameri had entered into a consent order resolving a summary dispossess action that Ameri, as landlord, had filed against Dowell, his tenant. In January 2010, Dowell entered into a one-year lease for an apartment in the first floor of a house on North First Street in Paterson. The monthly rent was $775, and the lease required a security deposit equal to one-and-a-half months' rent. The summary dispossess action filed April 8, 2010 alleged that rent and various charges were due and unpaid for March and April. Although the record before us does not include Dowell's answer to the summary dispossess complaint, Dowell's subsequent Small Claims Division complaint against Ameri, which we discuss at greater length below, alleged that she had obtained Ameri's oral permission in mid-March to vacate the apartment and terminate the lease because recent flooding in Paterson had affected living conditions at the apartment.

Under the consent order dated April 29, 2010, Dowell was conditionally relieved of any duty to pay additional money provided she vacated in just over two weeks.*fn1 The order provided, "Landlord waives any right to collect rent so long as tenant vacates on or before May 15th 2010 4:30, and landlord to file for warrant today, 4-29-10; but warrant shall not execute before May 15th 2010." Dowell agreed to the entry of a judgment for possession against her. She agreed not to seek any further extensions of her tenancy. Ameri also promised to give twenty-four hours notice before showing the apartment.

Dowell filed a complaint in Small Claims Division July 14, 2010 claiming that she vacated the apartment timely, but Ameri refused to return her security deposit. She demanded payment of $2326, equal to twice her security deposit. She alleged:

Per mediation agreement I was to terminate the premises by May 15th & the legal notice indicated May 19th. The premises were vacated on time and left in move in conditions. I attempted to give Mr. Ameri his keys and each time we were to meet he never showed up. I vacated his premises and new tenants are now occupying the premises and as of 7-12-10 I have not received my security deposit. I called Mr. Ameri several times[.] I finally spoke with him on 7-9-10 and he advised that he owes me nothing and began to argue, I advised him no problem and filed the complaint.

Ameri filed a counterclaim on August 3, 2010 alleging that Dowell had breached the lease by failing to pay rent and charges, and failing to maintain the premises, causing damages of $7,200. He also alleged that Dowell negligently failed to maintain the premises, causing damages of $7,200. He served extensive interrogatories and document demands on Dowell. The Small Claims complaint was transferred to the Special Civil Part DC docket, as the counterclaim's amount in controversy exceeded the Small Claims jurisdictional amount of $3000. See R. 6:1-2(a)(2) (jurisdictional amount); R. 6:11 (transfer to Special Civil Part from Small Claims Section based on counterclaim amount in controversy).

The matter was tried without a jury over four days in October and November 2010. The parties appeared pro se. The trial witnesses included Dowell, Ameri, as well as Ameri's wife, and two persons whom Ameri often employed in connection with his rental properties.

After the close of evidence, but before a decision on the merits, Ameri filed a motion for a declaration of a mistrial and a new trial. Ameri relied on claims of evidentiary errors, in particular the court's admission into evidence of photographs that Dowell claimed depicted the condition of the apartment in October 2010. Ameri argued during trial, and in his motion, that the photographs lacked appropriate foundation and also should have been excluded because they were not produced in discovery. After initially sustaining the objection, the court admitted them in evidence. Ameri also claimed that the judge demonstrated a lack of impartiality based on his evidentiary and other rulings. He also complained that the court erred in permitting Dowell to introduce evidence notwithstanding her failure to respond to Ameri's discovery demands.

In an oral decision on the merits issued November 10, 2010, the court found Dowell to be the most credible witness, and accepted her version of events. He credited her testimony that she had attempted, unsuccessfully, to return the keys to Ameri on Saturday, May 15, but ultimately returned the keys to him on Monday, May 17. She testified that she had moved her belongings out of the apartment over several days in May, completing the job by May 15, except for a refrigerator that she had removed on May 17. The court found her claim was supported by circumstantial evidence including proofs that she disconnected her cable service at the North First Street apartment on May 11; cable service at a new apartment she rented was installed May 14; and she paid rent of $1250 for her new apartment on May 7. He also found that Ameri received Dowell's security deposit of $1163.

The court rejected Ameri's assertion that Dowell still occupied the apartment as late as June 9. He found implausible that Ameri would not have sought to evict Dowell if she had continued to occupy the premises. He noted that Ameri had the warrant of removal issued May 12, 2010; and it commanded the tenant to vacate by May 19. If Dowell had indeed held over, Ameri would have had her removed, particularly since he was familiar with landlord-tenant proceedings, the court observing that Ameri appeared regularly in landlord-tenant matters.

The court was also unpersuaded by Ameri's three witnesses who claimed that Dowell remained in the apartment until June, rejecting them as biased in Ameri's favor. One witness was Ameri's wife, whose relationship to Ameri was not disclosed until cross-examination. The others were persons whom Ameri regularly employed.

Regarding the condition of the premises, the court found, based on photographs of the apartment taken by one of Ameri's workers, Ippolito Trinidad, that Dowell left holes in the walls. The wall repairs cost $300. However, the court was unpersuaded that Dowell left burn marks in the carpet, which was unsupported by photographic evidence. The court rejected as incredible the testimony of Kevin Slade, another Ameri worker, that he had installed new carpet at a cost of $300. The court noted that Ameri had claimed $300 in costs for "replacing damaged carpets in three rooms" in an itemized list of repair costs that he allegedly gave to Dowell on June 9; yet, according to the evidence, measurements were not taken until June 10, and work done thereafter. Regarding the issue of damage to the apartment, the court expressly declined to rely on October 2010 photographs that Dowell had introduced into evidence over Ameri's vigorous objection, and which Ameri referenced in his motion for a new trial.

The court found that North First Street where the apartment was located had been flooded in March, resulting in a shut off of water service and a charge for restoration. The court credited Dowell's assertion that her obligation for this was $87.83, and not $463.10 as Ameri alleged. The court thus found Dowell responsible for $387.83 in repairs and charges.

The court offset the repair cost and water charges against the security deposit, finding that $775.17 of the security deposit remained. Doubling that wrongly withheld amount, he awarded a judgment to Dowell of $1550.34. See N.J.S.A. 46:8-21.1 (requiring return of security deposit and interest "less any charges expended in accordance with the terms of [the] lease," and providing for payment of double the amount of moneys wrongfully withheld, plus costs of the action and, in the court's discretion, reasonable attorney's fees); Kan In Yi v. Re/Max Fortune Props., Inc., 338 N.J. Super. 534, 539 (App. Div. 2001) (stating that tenant's damages for wrongfully withheld funds under the Security Deposit Act, N.J.S.A. 46:8-19 to -26, are calculated based on the net amount due).

The court also denied Ameri's motion for a new trial. The court found that its decision to admit the photographs that Dowell introduced into evidence was harmless, as he chose not to rely on them. He stated that he had exercised discretion not to exclude evidence based on a failure to comply with discovery demands. He also rejected the claim that he had not been impartial.

Ameri appeals and presents the following points:

I. THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHS INTO EVIDENCE THROUGHOUT THE COURSE OF THE TRIAL.

A. THE TRIAL COURT ERRED IN PERMITTING THE RESPONDENT TO ENTER PHOTOGRAPHS TAKEN ON OCTOBER 31, 2010 INTO TRIAL ON NOVEMBER 1, 2010.

B. PHOTOGRAPHS ARE NOT ACCEPTABLE AS EVIDENCE WHEN THEY DO NOT PORTRAY THE SCENE AT THE TIME OF THE INCIDENT.

C. THE TRIAL COURT ERRED IN NOT APPLYING THE NEWELY [sic] DISCOVERABLE EVIDENCE STANDARD TO THE PHOTOGRAPHS.

D. THE TRIAL COURT ERRED IN PERMITTING THE RESPONDENT TO ADMIT THE PHOTOGRAPHS PUT FOR IDENTIFICATION ON OCTOBER 21, 2010 INTO EVIDENCE ON NOVEMBER 1, 2010.

E. THE TRIAL COURT ERRED IN PERMITTING THE RESPONDENT TO ADMIT THE PHOTOGRAPHS PUT FOR IDENTIFICATION ON NOVEMBER 1 INTO EVIDENCE AS A MATTER OF LAW.

II. THE TRIAL JUDGE ERRED AS A MATTER OF LAW AND FACT IN FINDING THAT THE RESPONDENT VACATED THE PREMISES IN ACCORDANCE WITH THE TERMS OF THE SETTLEMENT.

III. STATEMENTS MADE BY TRIAL JUDGE WERE IMPROPER AND REFLECT THAT APPELLANT WAS NOT RECEIVING A FAIR AND IMPARTIAL TRIAL TO THE EXTENT THAT IT CAUSED HIM TO BE IRREPREABLY [sic] HARMED.

IV. RESPONDENT SHOULD HAVE BEEN BARRED BY THE DOCTRINE OF ESTOPPEL FROM ARGUING IT WAS APPELLANT'S FAULT SHE DID NOT RETURN THE KEY ON TIME.

V. THE RESPONDENT FAILED TO DENY ANY OF THE CLAIMS MADE IN THE COUNTERCLAIM WHEREFORE THEIR ADMISSIONS SHOULD HAVE BEEN TAKEN ON THE RECORD AND HER AFFIRMATIVE DEFENSES BARRED.

VI. THE TRIAL JUDGE ERRED IN PERMITTING THE RESPONDENT TO ADMIT EVIDENCE AFTER SHE FAILED TO RESPOND TO RESPONDENTS [sic] INTERROGATORIES AND DISCOVERY DEMAND.

VII. THE TRIAL COURT ERRED IN NOT TAKING A NEGATIVE INFERENCE WHEN RESPONDENT BROUGHT TWO WITNESSES TO TRIAL AND DID NOT CALL EITHER TO TESTIFY.

VIII. TRIAL COURT IMPROPERLY TOOK JUDICIAL NOTICE OF A FACT BASED ON AN INFERENCE.

IX. THE TRIAL COURT ERRED IN THEIR [sic] FINDINGS OF FACT.

X. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A MISTRIAL.

The trial court stayed enforcement of the judgment pending appeal.

II.

After carefully reviewing the record in light of the parties' written arguments, we conclude that defendant's arguments lack "sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E). We add the following brief comments.

Our scope of review of the judge's conclusions in a non-jury trial are limited. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence"); Reilly v. Weiss, 406 N.J. Super. 71, 77 (App. Div. 2009) (affirming trial court findings in dispute over security deposit and landlord's damages claim). We defer to the trial judge's reasoned credibility findings, and conclude that there was adequate evidence to support his decision. See State v. Johnson, 42 N.J. 146, 161 (1964) (stating that an appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."). The fact-finding is controlled by the quality and weight of the evidence, not, as defendant argues, the number of witnesses who testified for one side.

There was sufficient, credible and substantial evidence to support the court's determination. The court credited Dowell, who testified that she vacated the apartment by the May 15 deadline, but for a refrigerator that she moved May 17, the day she was able to return the key. We defer to the trial court's determination that Ameri and his witnesses were not credible. The trial court was also justified in determining that a slight delay in moving the refrigerator was not a material breach of the consent order that would have justified revival of Ameri's claim for back rent. See Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 226 (1998) (consent judgment is in nature of a contract); Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (breach of a material term of a settlement agreement relieves other party of obligations under the agreement); Magnet Res., Inc. v. Summit MRI, Inc., 318 N.J. Super. 275, 286 (App. Div. 1998) (whether breach is material is a question for trier of fact).

Turning to other issues, the fact that Ameri personally litigated numerous landlord-tenant cases was a fact susceptible to judicial notice, as it was reflected by the "records of the court in which the action [was] pending." N.J.R.E. 201(b)(4). Ameri was entitled to an opportunity to be heard as to those facts in advance of the court's reliance upon them in its decision. N.J.R.E. 201(e). However, the court alerted Ameri during his testimony that the court found he was "an individual who appears in this court on a regular basis." Ameri sought no opportunity to be heard in regard to that fact. In any event, Ameri's comfort with the legal system was evident based on the nature of his pro se filings in the instant case, and the manner in which he conducted the trial itself.

We also shall not disturb a trial judge's exercise of discretion to decline to exclude evidence because of an alleged violation of a discovery obligation. See Wymbs v. Twp. of Wayne, 163 N.J. 523, 543 (2000) (courts have wide discretion in determining the appropriate sanction, if any, when evidence is offered that was not disclosed in response to a discovery demand). We are mindful that had Dowell's security deposit claim remained a Small Claims matter, Ameri's right to discovery would have been significantly curtailed. See R. 6:4-3(f) (discovery in Small Claims Section case generally limited to interrogatories of five or fewer questions, without subparts). Also, in the midst of the trial, Ameri conceded that the provable amount in controversy in his counterclaim did not exceed the Small Claim Section limit. Moreover, as the court noted, Ameri never filed a motion before trial to compel compliance with the discovery rules. See R. 4:23-5. We also conclude that the trial court's admission into evidence of Dowell's photographs was harmless, as the court expressly declined to rely on them.

Lastly, we reject Ameri's argument that the judgment should be set aside because of the trial court's lack of impartiality. The trial judge did occasionally become frustrated with the manner in which the pro se parties conducted themselves in a contentious, and, for a Small Claims matter, an extended trial. However, Ameri has fallen far short of establishing that the court's evidentiary and other rulings demonstrated prejudice or bias. See State v. Marshall, 148 N.J. 89, 276 (1997) (an error must be blatant and lacking in alternative good faith explanation to support charge of bias). Generally, a court's unfavorable rulings, even if erroneous, shall not prevent a court from sitting. Id. at 278.

Affirmed, and the stay of enforcement is vacated.


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